I’ve just come across a couple of blog posts written in the immediate aftermath of the Obergefell ruling—each a brief observation about something in Justice Scalia’s dissent in the case. I call them to the attention of Bench Memos readers because they are perfect examples of the inability to understand an argument. These could be simple cases of Scalia Derangement Syndrome, which induces episodes of temporary insane stupidity in some liberals who think that if Antonin Scalia said it, it must be vicious. But I think we may have more general cases here of an increasingly common invincible ignorance of how arguments function.

First was Andrew Gelman of Columbia, blogging at the Washington Post:

I saw here that Antonin Scalia is bummed that the Supreme Court has no Protestants, evangelical or otherwise, thus violating the fundamental principle of “no social transformation without representation.”
Scalia’s point is interesting, although I don’t quite know what to do with it. . . .

Gelman’s link takes us to Mark Joseph Stern at Slate, and if all Gelman knows is what he learned from Stern, he may be forgiven for not “quite know[ing] what to do with it.” (For a typical example of Stern’s attempts to think out loud, see David French over at The Corner.) Stern had posted some very brief comments before and after a quotation from Scalia’s Obergefell dissent:

Before the quotation:

In his typically ferocious dissent from Friday’s marriage equality decision, Justice Antonin Scalia calls the opinion a “threat to American democracy” because it “makes the People subordinate to a committee of nine unelected lawyers.” And those “unelected lawyers” are especially unqualified to render an opinion on same-sex marriage because they are “hardly a cross-section of America.” How so? As Scalia explains . . . .

After the quotation:

There are many respectable reasons to oppose the justices’ decision today. The court’s lack of evangelicals is not one of them.

And yes, in case you were in doubt, Stern’s post is titled “Scalia Explains Why SCOTUS Shouldn’t Rule for Marriage Equality: It Has No Evangelicals.”

Now, dear intelligent readers, you know already that Justice Scalia is not crazy or stupid enough to make an argument that fits such a description. But Mark Joseph Stern is dumb enough to think so. Here is the relevant passage that falls between Stern’s fore-and-aft comments:

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.

I want to be fair to Stern here: he drops in a screenshot of the printed opinion beginning with the last two words of the second sentence, and the balance of the paragraph complete thereafter (“of America. Take, for example . . .”). But even omitting the first two sentences, which Stern presumably read himself, could anyone mistake Scalia’s point more completely?

Here, in words of one syllable for Mark Joseph Stern, is what Scalia said: It’s fine for the Court to have folks on it who are not like you and me and all the folks we know, when all that they do is read the law and say what it means. But if they want to make the law, then we’d want them to be more like all of us than they are. And they ain’t. Got it?